United States: Why The TCCWNA Matters To Retailers In New Jersey

Brett Carroll is a Partner in Holland & Knight's Boston office


  • In the past few years, an unprecedented number of consumer class action claims have been filed under the New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA).
  • These claims have resulted in retailers spending hundreds of thousands, if not millions, of dollars defending questionable class claims that have little to do with protecting consumers' rights.
  • The increase in TCCWNA claims is likely to continue in the foreseeable future. Retailers need to understand the issues involved and take proactive steps to minimize their risk and exposure.

The New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 et seq., was enacted in 1981 by the New Jersey Legislature to address a growing trend of calculated deception in the consumer context. In concept, the TCCWNA had laudable goals to protect New Jersey residents from unscrupulous, fly-by-night businesses that were taking advantage of consumer rights. However, the recent wave of purported consumer class actions brought under the TCCWNA do not just target "bad actors" in order to protect the rights of New Jersey consumers. Rather, the vast majority of these claims target legitimate companies that contribute lawfully to commerce across the country, including in New Jersey, seemingly in order to line the pockets of class counsel without regard to whether there are actually legitimate consumer issues at stake.

For 30 years, the TCCWNA had a low profile. However, in the past few years, an unprecedented number of TCCWNA claims have been filed throughout New Jersey courts. These claims have resulted in retailers spending hundreds of thousands, if not millions, of dollars defending questionable class claims that have little to do with protecting consumers' rights. Despite recent favorable decisions for retailers, TCCWNA claims will likely increase in the foreseeable future. Retailers need to understand the issues involved and take proactive steps to minimize their risk and exposure.

What the TCCWNA Was Designed to Address – and How It Is Now Used Against Retailers

The legislature history of the TCCWNA confirms that it was designed to protect consumers from contract provisions that are illegal and unenforceable. Critically, "the provisions must deceive[] a consumer into thinking that they are enforceable and for this reason the consumer ... fails to enforce his rights."1 Generally, Section 15 of the TCCWNA prohibits retailers from offering or displaying any written warranty, notice or sign to a consumer "that violates any clearly established legal right of a consumer" under state or federal law. Section 16 prevents retailers from including any language in a consumer contract, warranty, notice or sign whereby: (a) the consumer "waives his rights under th[]e act," and/or (b) the provisions may be void, unenforceable, or inapplicable in "some jurisdictions" without specifically stating whether they are void, unenforceable, or inapplicable in New Jersey or not.

The TCCWNA does not create new rights or responsibilities, but it provides consumers with an additional remedy to enforce existing rights and responsibilities established by other laws. A violation of the TCCWNA results in either actual damages or a $100 penalty per violation, plus attorneys' fees and costs.

The TCCWNA's popularity increased significantly in 2009 as a result of a decision issued by a New Jersey Appellate Court, which held that TCCWNA claims could be brought as a class action even if the plaintiff has not suffered an ascertainable loss.2 This case was followed by a series of state court decisions that suggested to plaintiffs' counsel that TCCWNA claims were viewed as "plaintiff-friendly" and, perhaps, less difficult to sustain than actions filed under the New Jersey Consumer Fraud Act.

Because class counsel is emboldened by the purported concept that a mere technical violation of the TCCWNA, even without any resulting impact, harm, loss or deception felt by the consumer, can result in a violation, companies are faced with defending class claims with unrealistic expectations of expected damages in the tens of millions of dollars.

Class Counsel Targets in New Jersey

Because enforcement of the TCCWNA has been effectively left to private attorneys, the increase in TCCWNA claims is expected to continue for the foreseeable future. To this end, on April 22, 2016, the New Jersey Civil Justice Institute issued troubling statistics confirming the dramatic increase in TCCWNA claims filed over the past six years. Although the first 25 years of the statute saw little – if any – use, the past six years has confirmed, on average, 20 class actions being filed each year, with 2015 reaching more than 25. If the first few months of 2016 are any indication, the total number of new actions in 2016 will likely exceed 30.

Originally, claims focused on terms and conditions contained in retailers' written consumer contracts, warranties, notices and/or signs. Cases involved automobile sales contracts, restaurant menus, gift cards, advertising materials, telephone pitches and storage rental agreements, among other matters.

While the "written consumer-facing claims" continue, class counsel have shifted their focus toward "web-based consumer communications." Specifically, class claims have increased significantly against online retailers, with a focus on the retailers' website terms and conditions. The retailers targeted are wide ranging, including auto parts manufacturers and distributors, home goods retailers, cosmetic companies, toy stores, car rental companies, clothing retailers, electronic retailers, appliance retailers, storage facilities and restaurant groups, among many others. The new wave of complaints addresses terms and conditions that purport to disclaim or limit liability, limit or disclaim damages, shorten statutes of limitations and limit indemnification obligations, as well as items such as choice of law, severability and savings clauses.

Recent Trends Provide Defenses for Retailers

For some time, TCCWNA case law did not appear favorable to retailers, especially given the state court's significant reliance on New Jersey's reputation for being strict with respect to consumer fraud. These decisions often pushed the boundaries of the TCCWNA, leaving retailers with no choice but to attempt to settle claims on somewhat favorable terms. However, numerous favorable federal court decisions have been issued in the past few years, providing retailers with increased hope and precedents to limit the unanticipated and unlawful scope and breadth of TCCWNA enforcement.3

In addition, an increasing number of state courts in New Jersey are more carefully scrutinizing TCCWNA claims, indicating that TCCWNA claims must be premised on affirmative, deceptive conduct.4

Holland & Knight has specific and recent experience with the TCCWNA. This year, on behalf of a national furniture retailer, Holland & Knight successfully defeated a purported TCCWNA class action arising out of alleged violations of the New Jersey Delivery of Household Furniture and Furnishings regulations. After removing the action to federal court under the Class Action Fairness Act and successfully confirming the U.S. District Court for the District of New Jersey's jurisdiction in a challenge before the U.S. Court of Appeals for the Third Circuit, the District Court dismissed all claims against the retailer. The District Court confirmed that, in order to sustain a TCCWNA claim, the prospective plaintiff must be "aggrieved" such that he or she has suffered the "effects of a violation" of the TCCWNA or that the plaintiff's "personal, pecuniary, or property rights have been adversely affected by another person's actions."5 The District Court flatly rejected the plaintiff's argument that even technical violations of the TCCWNA will result automatically in liability. The matter is now before the Third Circuit Court of Appeals along with another case against a second furniture retailer.

Considerations for Retailers

There is considerable uncertainty given the expected increase in actions and lack of clear, definitive guidance from the courts concerning the types of TCCWNA claims that can be sustained. Regardless of size and type, every retailer must take the threat of TCCWNA claims seriously.

The increased trend in purported class action filings claiming TCCWNA violations undoubtedly will continue for the foreseeable future. The statute provides a quick avenue for plaintiffs to evade the more cumbersome requirements of a Consumer Fraud Act claim, while still enjoying the benefits of prospective class status. In that respect, the prospect that minor, technical violations can result in multimillion-dollar class awards is especially appealing to plaintiffs' counsel.

To minimize their risk and exposure, retailers should:

  • Engage in active (and immediate) compliance review of consumer-facing communications: Undertake an immediate comprehensive analysis of consumer communications, whether web-based, social media, form contracts, terms and conditions, and/or any other written communication provided to consumers; take active steps to refine and/or revise terms to ensure more strict compliance with the "letter of the law" in an attempt to avoid being targeted by class counsel, with a particular focus on website terms and conditions, including provisions that limit liability or disclaim warranties.
  • Confirm internal policies concerning modifications to consumer-facing communication: Establish internal policies such that changes to consumer communications (whether web-based, social media, or hard copy) are actively evaluated for continued compliance with the law to minimize potential suits.
  • Consider targeted training where appropriate: Identify specific New Jersey regulations that impact your particular industry and provide training, as appropriate, to managers and/or employees who may be responsible for providing company communications to consumers.
  • Evaluate the benefits of mandatory mediation/arbitration provisions: Consider whether such provisions could have a positive impact on any TCCWNA claims brought.
  • Proactively evaluate insurance coverage: Evaluate your insurance policies to determine whether these types of claims are covered – at least in terms of providing a defense based upon the standard allegations in these types of actions – and speak to your broker or insurer to determine what types of additional coverage may be available to protect you in the event a claim is filed.
  • If sued, consult with experienced counsel immediately: While a number of defenses exist to these claims, depending upon the particular facts at issue and numbers of consumers involved, exposure could easily reach tens if not hundreds of millions of dollars, especially when considering the terms and conditions contained in a commercial website. Further, early consideration must be given to the best venue for a case (i.e., state or federal court, assuming federal court is an option), proof to support removal to federal court when possible, early dispositive motions to dismiss and potential discovery issues, including class-related discovery.


1. Statement to Assembly, No. 1660 (May 1, 1980) (emphasis supplied).

2. See United Cons. Fin. Ser. v. Carbo, 410 N.J. Super. 280 (App. Div. 2009).

3. See Watkins v. DineEquity, Inc., 591 Fed Appx. 132 (3d Cir. 2014) (refusing to find TCCNWA claims in the absence of affirmative, deceptive conduct); see also Wilson v. Kia Motors Am, Inc., 2015 WL 3902540 (D.N.J. June 25, 2015) (requiring consumer to prove each element of his underlying Consumer Fraud Act claim to support a TCCWNA claim); Matijakovich v. P.C. Richard & Son, No 2:16–cv–01506–WHW–CLW (D.N.J. June 21, 2016) (concluding that omission of regulatory notices not actionable under the TCCWNA); Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360 (D.N.J. 2015) (dismissing TCCWNA claim in which consumer could not prove each element of his underlying claim).

4. See, e.g., Wright v. Bank of Am., Inc., No. L–433–15, 2016 WL 631910 (N.J. Super. Ct. Jan. 28, 2016) (holding that "'deception' . . . is integral to the TCCWNA claim" and dismissing TCCWNA claim where consumer not deceived by omission of information required by statute); see also Walters v. Dream Cars Nat'l, LLC, No. BER–L–9571–14, 2016 N.J. Super. Unpub. LEXIS 498 (N.J. Super. Ct. Mar. 7, 2016) (recognizing that the TCCWNA is designed to "target those vendors that engage in deceptive practice and [seeks] to only punish those vendors that in fact deceive the consumer, causing harm to the consumer"); Greenberg v. Mahwah Sales & Serv., Inc., No. BER–L–6105–15, 2016 WL 193485 (N.J. Super. Ct. Jan. 8, 2016) ("TCCWNA's primary goal is to prevent confusion among consumers as to their legal rights."); Cameron v. Monkey Joe's Big Nut Co., No. BUR–L–2201–07, 2008 WL 6084192 (N.J. Super. Ct. Aug. 4, 2008) (holding that consumer had no viable TCCWNA claim because he was not aggrieved when he had not suffered the effects of the alleged violation); Walker v. Giuffre, No. MID–L–3187–03 (N.J. Super. Ct. May 17, 2007) (dismissing TCCWNA claim because there is "nothing in the statute to suggest that the Legislature intended to authorize a consumer, who is not actually harmed, to bring a TCCWNA claim based on purely CFA violations as to which she would have no standing to bring suit under the CFA itself").

5. Wenger v. Bob's Discount Furniture, LLC, No. 3:14–cv–07707–FLW–LHG (D.N.J. Feb. 29, 2016).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.